There has, of course, been endless speculation already about which way the Supreme Court will go on Prop 8 and DOMA. We are faced once again with the dreary, dismal prospect that one black-robed tyrant, Anthony Kennedy by name, will decide marriage policy for 315 million Americans.

Our Founders must be rolling over in their muskets and powder, aghast at the servile submission of a once-free people.

What most folks fail to grasp is the fact that we are in court at all is already a defeat for the Constitution and the American principle of self-governance. We have already lost no matter who wins.

When Prop 8 was first challenged in federal court, this is how that initial court appearance should have gone.

Judge: "The people of California have amended their own state constitution to define marriage as the union of one man and one woman. Mr. Attorney, I'm looking in vain for that article of the federal Constitution that explicitly grants me any authority whatsoever to disenfranchise 7 million voters and set aside a state constitution I do not like. I have read the Constitution forward, backward, sideways, and from right to left and I still can't find it. Can you?"

"Well, your honor, it's implied in there somewhere. Like in the 14th Amendment."

"Mr. Attorney, I have read the 14th Amendment repeatedly, and I find no mention of the phrase 'state constitution' and in particular I find no mention of the word 'marriage.'"

"Uh, well, they're not in there, your honor. But, you know, the Constitution is a living document, so I'm sure it's grown by now to include all that."

"Mr. Attorney, I am not interested in some penumbra or emanation, I want chapter and verse. Where does this Constitution explicitly grant the federal judiciary the authority to overturn state Constitutions?"

"Uh, nowhere your honor."

"That's exactly what I thought. Get out of my courtroom."

When DOMA first was brought to federal court, this is how that exchange should have gone:

"Mr. Attorney, I have looked in vain for any mention whatsoever in this Constitution of the word 'marriage.' Any mention at all. Any authorization whatsoever that explicitly gives the federal government or any part of it a power of action to tell a state government what its policy may or may not be with regard to marriage."

"Uh, marriage is not in there, your honor."

"So, Mr. Attorney, because this Constitution gives me no authority of any kind to meddle in a state's marriage policy, that issue is reserved for the states according to the 9th and 10th Amendments, correct?"

"Uh, yes, your honor."

"And DOMA explicitly protects the right of each state under the 10th Amendment to decide marriage policy for itself, does it not?"

"Uh, yes, your honor."

"That's what I thought. Get out of my courtroom."

"But your honor, what about defining marriage for federal purposes?"

"Mr. Attorney, surely you're not too stupid to understand that if the federal government is going to hire people and grant them spousal benefits, the American people, through their elected representatives, have every right to define marriage for federal purposes, do they not?"

"Uh, yes, I guess so, your honor."

"That's what I thought. Get out of my courtroom."

For Prop 8 and DOMA even to be in court at all, for the American people to abjectly surrender their sovereign, self-governing power to unaccountable bureaucratic tyrants, is a defeat for constitutional government of the highest order. Yet no one seems troubled in the slightest that we are even here.

We have become so accustomed to the dictatorial actions of unelected fascists on the federal bench that we have failed to see that we are no longer citizens but serfs. We now wait meekly and submissively for nine mini-gods swinging gavels like scimitars to tell us what marriage policy must be, long after we and our elected representatives have settled matters in precisely the manner outlined by our governing documents.

This is pitiful, shameful, beneath contempt and beneath the dignity of a free people.

The first words in the Constitution are "We the People," not we the "Feudal Overlords of the High Court."

It matters not, in the end, which side prevails. We have already surrendered our freedom as a people by showing up in court at all.

Bryan Fischer

Bryan Fischer is the host of the daily 'Focal Point' radio talk program on AFR Talk, a division of the American Family Association. 'Focal Point' airs live from 1-3 pm Central Time, and is also simulcast on the AFA Channel, which can be seen on the Sky Angel network.